Antitrust Law Daily Wrap Up, PRIVACY—N.D.Cal.: Market research calls were not “telephone solicitations” in violation of TCPA, (Apr 27, 2015)

By Michael Menzhuber, J.D., LL.M.

Claims that phone calls received from a consumer survey company were prohibited under the Telephone Consumer Protection Act (TCPA) were dismissed by the federal district court in San Francisco. In granting the motion to dismiss, the court determined that there was no evidence that the calls were “telephone solicitations” in violation of the TCPA (Orea v. Nielsen Audio, April 24, 2015, Spero, J.).

Background. Alfred Orea alleged that he received multiple phone calls at his home from Nielsen Audio, Inc., a consumer survey company in April 2014, asking him to participate in a TV and radio survey. Orea asserted that he was registered on a “do not call” (DNC) list, he had not provided Nielsen with his home telephone number, he did not have a business relationship with Nielsen, and Nielsen did not have his permission to call him.

Orea filed a complaint against Nielsen, alleging negligent and knowing and/or willful violations of the TCPA for engaging in telephone solicitations to a phone number listed in the DNC registry. Nielsen filed a motion to dismiss the complaint, arguing that the phone calls were not “telephone solicitations” and, therefore, not prohibited under the TCPA.

Telephone Solicitations. The court found that the phone calls were not “telephone solicitations” under the plain language of the TCPA because they did not “intend to encourage a purchase, rental, or investment in any goods services or property. “ Orea argued that the phone calls were “telephone solicitations” because Nielsen called with the intent of buying Orea’s “labor and information.” The court disagreed because the purchase intended by the phone call must be a purchase by the consumer, not the caller. The court noted that phone calls that indirectly encourage the purchase of a product or service could be considered a “telephone solicitation.” However, there were no facts or allegations to suggest that the Nielsen’s phone calls indirectly encouraged a purchase.

In looking at the legislative history, the court found that it was consistent with the TCPA’s plain language definition of “telephone solicitation.” The court did note that a call encouraging a purchase, rental or investment would fall within the definition even if the caller purported to be taking a poll or conducting a survey. However, because Orea alleged nothing more than a market survey, and there were no allegations that the phone calls encouraged a purchase, rental or investment, the court considered the phone calls to be “pure market survey” calls and not “telephone solicitations.”

Finally, the court considered a Federal Communications Commission order, stating that calls conducting surveys and market research are not considered “telephone solicitations” unless they serve as a pretext to a telephone solicitation or otherwise prohibited advertisement. The court further noted that phone call surveys and market research were not within the definition of “telephone solicitation” and were not precluded by the national DNC list. After engaging in a two-step analysis to determine whether to apply the FCC’s interpretation, the court found that the TCPA was clear on the issue of “telephone solicitation” and that the FCC’s interpretation was reasonable.

The case is No. 14-cv-04235-JCS

Attorneys: Todd Michael Friedman (Law Offices of Todd M. Friedman, PC) for Alfredo Leon Orea. David L. Hartsell (McGuireWoods LLP) for Nielsen Audio, Inc.

Companies: Nielsen Audio, Inc.

Cases: Advertising Privacy CaliforniaNews